Welcome to our blog!

With the symposium just days away, we'd like to start the conversation, at least virtually. Here are three questions we'd like your thoughts on:

(1) Tell us a little bit about the perspectives or experiences in education law or policy you hope to bring to the conference.

(2) What would it mean to make education a fundamental right? We welcome broad thoughts on this question broadly in lay, policy, or legal terms.

(3) What are the biggest obstacles to creating a fundamental right to education?

Please send a short response to these questions (around 200 words) to Lin Chin (lin@berkeley.edu), and it will be posted on the blog. See what other participants have already written below. You may comment on their posts using by clicking on word "comment" below each post. We look forward to hearing from you!

W. Norton Grubb

The idea of promoting the civic, political, and moral roles of education emerged in several papers at the conference. It's a very common idea, and its origins lie in the origins of public education in the early 19th century, when the common schools were established to provide a common curriculum to all children since they would become citizens (well, some of them, anyway); in higher education the same idea emerged in the idea of mental discipline and moral character as the purpose of education. Now it seems that every month one can find a new book or article from someone arguing that we need to strengthen or return to or restore the civic and moral purpose of education.

The problem with ALL of these, including several papers at the conference, is (1) this is hardly a new idea; (2) they don't wrestle with WHY civic and moral purposes have lapsed. According to many observers - David Labaraee is one historian, and I have written about this in The Education Gospel: The Economic Value of Schooling - the rise of vocational purposes (or professional purposes, at the postsecondary level) is responsible, though there are many other elements that I review in my book (pp. 69 - 72). Without confronting why civic purposes have declined, there is no point is restating their importance one more time, and no point at all that I can see to establishing legal theories built upon the centrality of civic purposes. There are several ways out of this dilemma - mine has been to call for various attempts to integrate civic and occupational purposes - but any real solution has to start by confronting the problem rather than ignoring it.

Daniel Losen

Having worked for The Civil Rights Project on education issues for the last seven years after teaching in public schools for about 10, I offer a few ideas based on my experience. Unfortunately I can’t attend the conference, but I’m eager for the opportunity to work with many of you in the future.

I hope the discussion at the conference and beyond will cover how to frame the issue in a way that maximizes the contributions of each one of us, rather than delineating differences among the broad participants, who do have the will and are paving the way. Specifically:

* I think we need to discuss any right to an education as an expansive K-16 concept.

* We need to leverage more meaningful change from whatever battles we can win. To this end lawyers, educators, policy makers and researchers should have more extensive discussions about the intersection of the legal or legislative strategy with the range of remedies that can be sought, and plan on working together far far beyond the day the decision is handed down or the legislation signed.

* As we develop a better sense of how fighting for a fundamental right to education will fit into a broader strategy of achieving tangible equitable opportunities and outcomes, I propose coupling this long term aspirational goal with a select set of realistic short and intermediate term objectives to be pursued simultaneously -- a cohesive strategywith greater communication among the participants. For one example, a short term goal of federal and state legislation requiring more transparent disaggregated data on many facets of education (k-16) on the school, district and state levels would provide the information we need to make more effective legal, policy, and economic arguments for a range of reforms in the midterm. These data are also essential to making the case for the long term goal.

I too see that most Americans believe we all have a right to an education, think most kids get a good education now, or don’t fully understand the benefits they’ll accrue by having a better educated citizenry. I don’t think we’ve done a good enough job combining the human face of neglected youth and denied opportunity with the very negative impacts to all of having a large, poorly educated under class, including the costs of the underinsured and over-incarcerated. We also must keep race and ethnicity squarely on the table along with other subgroups and do a better job of illustrating the connections so that advocates from one group see themselves in the other groups, and as a result, collaborate more frequently and effectively.

Cindy Brown

I am very much looking forward to this gathering. Like many who are attending, I have spent a very long time working on educational equity issues. The first half of my career I focused on civil rights enforcement in the Office for Civil Rights and in advocacy groups. I remember well the disappointment of the Rodriquez decision. Eventually, as the courts turned sour and I became convinced that pursuing school desegregation remedies was mostly fruitless, I turned my efforts to school improvement. At CCSSO where I spent 15 years, I saw slow, but steady progress in state attention to schools serving large concentrations of students of color and from low-income families. However, state action has always been too weak to overcome the local status quo.

With the No Child Left Behind Act—just the latest iteration of ESEA of 1965—we have seen the strongest federal “intervention” in schooling since the federal lawsuits and administrative enforcement of Title VI of the Civil Rights Act of 1964 in the 1960s and 1970s. The achievement patterns of students by subgroups are more transparent than ever before. As grim as the achievement gaps are, this new data allows the identification of high performing high poverty and/or high minority schools. The knowledge about what it takes for such schools to perform so well is increasing rapidly. The challenge is to design policy levers that lead other schools to adopt the practices used in these schools. I’m not sure if there is a role for the courts in making this happen. I’m convinced that there is a growing interest among policymakers to do this.

Gary Orfield

I am very much looking forward to a discussion with such a remarkable group. I was glad to participate in Williams and I have always supported the goals of resource litigation but have not been satisfied with the results. As a political scientist who has studied and participated in many legal and public policy disputes over educational equity since the l960s it seems to me that we have to think about hard questions including:

1) If we are going to require more resource be given to high poverty schools, how can we attach them firmly to the relatively small number of interventions that clearly increase educational achievement and opportunity?

Excellent and experienced teachers are a primary example of resources that must be reallocated somehow for any approach to equity. Serious college prep courses taught at an appropriate level by qualified people supported by serious counseling are another. Both of these, for example, relate to the preparation of the peer group ready and willing to take the appropriate classes,especially at the high school level and the fact that teachers and staff in high poverty schools have to deal with many things that teachers in middle class schools can largely ignore and that those overwhelmingly white and completely middle class professionals often feel uncomfortable and unsupported and can transfer to other jobs with fewer demands where they can focus on teaching their subjects with many fewer distractions and more community support. How can courts and advocates work with educators to think about ways to change incentives and support systems?

2) What could be a compelling metaphor for the effort, since it is obvious that much more than equal resources will be necessary for any approach at equal opportunity in segregated high poverty schools? Adequacy makes sense legally but has no clear public resonance.

3) Don't we have to take on a campaign to reverse tax cuts and increase public resources generally if there is to be any lasting remedy andif we do not want to cut housing and health care to boost education funds? Or do we simply assume education is adequate by itself to remedy inequalities?

4) Aren't we saying that Plessy is a viable policy if we ignore the racial dimensions of the problem? If so, where is any example of a successful and lasting Plessy-type success in the past 110 years? If not, must there not be a treatment of the underlying realities as part of rethinking Rodriguez? Wasn't one of the problems of Rodriguez that the racial issues were not made explicit enough? Isn't one of the realities of pure finance cases that the money is never enough, that the institutions that get it are not very good, and that there is no restructuring of community or politics that can sustain a remedy at an adequate level over time?

Kevin Welner

Court mandates can unquestionably play indispensable roles in moving school systems toward equity. But courts act within all the well-documented constraints: precedential, jurisdictional, political, and temporal, as well as each judge's own values and beliefs. Because lawsuits are necessarily limited in these ways, they should be framed as one aspect of a larger effort to shape policy.

I am currently reading the new book by Oakes, Rogers, & Lipton called "Learning Power," which does an excellent job framing the rethinking that I see as necessary if the U.S. is move toward a universal right to a quality education. The book, like the piece to be presented at the conference by Oakes, Rogers, and Blasi, takes on the task of describing what the above-mentioned 'larger effort' might look like. Once we embrace the idea of a social movement to push for educational rights, other work comes into sharper focus. Those of us who are engaged in litigation or research or legislation or funding can align our efforts to a movement's goals and
activities.

Each policy decision is made within a context that policy-makers are very aware of. They know, based on that context, which policies are feasible and which are not. Lawsuits and court mandates help to shape that context, as do a variety of other forces -- the local ethos and beliefs and history and finances, as well as national trends, research, etc. But no equity-minded policy will long survive without a constituency with the political power to be effectively heard and heeded.

My background/perspective: I am an attorney and a professor of education at the University of Colorado. Much of my research has examined the process of equity-minded school reform. What policies are initiated, and why? How does the implementation process proceed, and why? How do educational policies and practices play out in the real world of schools, given imbalances in power and knowledge?

See you all next week.

Paul Tractenberg

I have been involved in using law to equalize the educational opportunities of poor, mostly minority children continuously for almost 40 years. Much of my work has been in NJ on the Robinson v. Cahill and Abbott v. Burke cases. Although some who should know better have tended to ignore what we have accomplished (perhaps because there are so many long, complicated judicial opinions), or even to criticize the lengthy involvement of our state supreme court, I would gladly compare what we have accomplished to any other state. Where else has a state's highest court established as a constitutional imperative providing poor, educationally-disadvantaged urban children with an educational opportunity designed to equip them to compete with their advantaged suburban peers? Where else has a chief justice said straight out that, if we're serious about equalizing opportunities, we have to spend more on educationally-disadvantaged students than on the advantaged? Where else has that actually happened (spending in the so-called Abbott districts is far above the state average, on a par with the state's highest-spending districts, and above the spending levels of many wealthy, suburban districts)? If I seem to have an attitude about this, chalk it up to the fact that Abbott may be under siege from a liberal Democratic governor. We're back in the NJ Supreme Court on an application to freeze Abbott district funding and, to justify its application, the state has engaged in some unseemly and inaccurate bad-mouthing of what's been going on. By the time we meet at the symposium, we may know much more about how serious a threat to equalizing educational opportunities this constitutes.

Stephen Sugarman

Are Liberals Really Committed to Education as a Right of All American Children?

Probably because I first came to the idea of a right to education from the perspective of school finance reform, I have always believed that equal educational opportunity starts with fair access to a reasonably fair share of educational resources. I concede that attention to dollar inputs is not sufficient, but I still believe it is a necessary floor.

How turn those dollars into effective education that well prepares young people for their adult roles as citizens, family members, and workers is much contested and likely to remain so. (My preference for empowering low-income parents to make informed choices for their children is not very popular with most liberals, and I put this strategy aside here.)

If American children are to have access to sufficient resources so that there is, in turn, a good chance that most children will learn enough to meet reasonably high educational standards, then it seems to me that each of our levels of government has a duty to assure this objective is met. Schools need to assure a fair allocation of what they have, districts need to assure a fair allocation of what they have, states need to assure a fair allocation of what they have, and the nation as a whole has to assure that states (and the units below the state) have a fair share of the national wealth to responsibly do their jobs. (Almost all of the school finance litigation over the past 35 years has aimed at only the third of these four duties.)

As I read Goodwin’s paper on national school funding inequalities, it appears to me that a large share of the “poor” states are “red” states (especially in the south and southwest) and that a large share of the “rich” states are “blue” states (especially in the northeast).

To be sure, it may not be easy for Congressional and Senatorial representatives from states like Massachusetts, New York and Connecticut to eagerly embrace sending federal tax dollars to states like Alabama, South Carolina and Oklahoma (especially when political leaders in the rich states recognize that children from low income families inside their own borders are now often failed by our schools.)

Nor, alas, does their seem to be a great deal of pressure by representatives of those “poor southern red” states (despite Republican power) to make increased federal aid a priority. Perhaps this is because Title I’s current formula disfavors poor states despite their greater need. Perhaps more importantly, these are states with long histories of racism, whose conservative political leaders are disinclined to champion changes aimed at improving the lot of African-American, especially when their constituents now include large numbers of white fundamentalist Protestants who are fed up with what public schools are offering to their children and would not be terribly excited by higher spending on those schools.

Nonetheless, I believe that liberal leadership, if drawn together from a great number of places around the nation, could perhaps successfully promote a substantial increase in federal spending – if those leaders are willing to back a scheme in which a disproportionate share of that funding were to go to poor states (importantly, poor red states) that desperately need the money.
If this enhanced federal financial commitment were to be combined with seriously enforced obligations of states to fairly distribute what they have and to ensure that their districts and schools too also fairly allocate what they have, then there would be a chance that No Child Left Behind could become a truly national concept. Alas, the current NCLB at best pushes towards intra-state equality but not towards an inter-state equality that a true American “right to education” would imply.

But I don’t see liberal political leaders from rich blue states saying that taxpayers in their states should be asked to pay for school finance dollars to be sent to red state strongholds, even if the scheme contained conditions that assured that the major beneficiaries of the money would be poor and working class families who these liberals claim to care about. Why is this? If, as Goodwin argues, our political leaders have a constitutional duty to make real a right to education for all American citizens, should not liberals from places of wealth be first in line to embrace that duty?

Carl Kaestle

I am a historian of American education. I have written about the origins of public education in America, and about the federal role in education. I have served on various groups that deal with education policies, such as the Board on Testing and Assessment, where I first met Bill Taylor and Chris Edley. For the past four years, I have been working with a group of bright postdocs who study “national and federal strategies of school reform.” I am also in an informal study group led by led by Lynn Huntley of the Southern Education Foundation, considering possible constitutional mandates for equal educational opportunity. What we learn at this conference will enrich that work.

Much of the growth of federal education initiatives has been driven by concerns about equal opportunity. Recent retreats from those concerns are discouraging but not surprising. Using schools to equalize opportunity is instinctive but not easy. And equal opportunity has always had to compete with other powerful motives such as moral education, cultural hegemony, and reproducing the social structure.

In the current climate, the chances for reversing Rodriguez or passing a constitutional amendment guaranteeing equal educational opportunity seem remote. Nonetheless, it seems well worth the effort to prepare the ground for some later judicial traction and to keep press arguments that might lead states, and even the federal government, to create policies that would serve equal educational opportunity.

What are the biggest obstacles? First, popular opinion and the current political culture. On balance, the country is not in the mood for expansive and expensive policies to treat people equally. Second, the courts. One might say that the first, more diffuse obstacle causes the second more palpable judicial barriers. It’s hard to change the root cause, but we can do research, develop arguments, and seek allies to soften that resistance.

Toward those ends, I hope to hear more about two concepts at this conference: First, the concept of a “popular constitution,” within which many Americans believe that people have “a right” to equal educational opportunity; and second, Goodwin Liu’s emphasis on the citizenship clause of the Fourteenth Amendment as an approach to the reconsideration of Rodriguez.

Douglas Reed

I am approaching this conference with an odd mix of both enthusiasm and pessimism. I am genuinely looking forward to meeting and working with scholars and advocates who have done much to understand and promote educational equity over the years. At the same time, I am deeply concerned about the lack of a political commitment within the United States for even political equality, let alone the kind of social equality that true educational equity would entail. That said, I can think of no other realm besides public education that offers the kind of rich opportunity to build greater political and social equality within the U.S.

As a political scientist, my objectives are more mixed. I am deeply concerned about the ideological divisions within the study of public education -- on all sides of the issues. At the same time, I strongly feel that we need better empirical research into the political dimensions of public education and the ways that public education is a forum for the contestation of other values besides educational equity. Without understanding those dynamics, advocates of educational equity will find themselves unable to understand the limitations of the cause
and their own opportunities.

I look foward to meeting you all in a couple of weeks.

Lynn Huntley

I am a lawyer, educator and life-long civil and human rights activist. The old saw that “it does no good to have a right to sit at a lunch counter if you don’t have the price of a hamburger” conveys a profound truth. The United States now has a spine of anti-discrimination laws and policies, but too many people lack equal ability to take advantage of equal opportunity because they lack education. There is much work yet to be done.

In the Information Age into which the world has moved, the flattened world, those who have an excellent education will be able to find jobs that pay livable wages or enter into fields of endeavor that can provide a quality standard of living. Those who lack excellent education and skills will be increasingly marginalized and impoverished. In the South, the region from which I hail, 40 percent of the residents are low income and a new majority of students enrolled in the public schools are poor. That is too many people to ignore. The region’s (and the nation’s) economic, democratic, social and political future depends upon improving education for this mass of humankind.

The states in the South have limited tax bases on which to rely to effect education improvements. The decentralized system of public education finance ensures inequality in inputs and outcomes between and among school districts within states and between and among states. This patchwork is unacceptable and cannot be remedied without the leadership and intervention of the federal government. The amount of the public investment in the education of children should not be a function of geography or class.

It is for that reason that the Southern Education Foundation, a public charity that has since 1867 focused on equity and excellence in education for low-income students, recently began a scholarly examination of what might be wrought by various formulations of an education amendment to the United States Constitution. At the least, a national debate about such an amendment might focus public attention on the deep structural inequalities that need to be addressed. Whether through judicial interpretation, statutory law or constitutional amendment, it is time for a new national focus on and formulation of new policies/practices to better develop the nation’s most precious asset, its human capital.

I look forward to the Rodriguez conference and the stimulating dialogue and insights that it will provide.

Rob Reich

I am a former sixth grade teacher in Houston, Texas (early corps member with Teach For America). This experience motivated my later doctoral training and continues to influence the scholarly work I do now as a political theorist at Stanford University. What does equal educational opportunity mean? What kinds of inequalities matter? How should we pursue equality in education?

Like William Taylor, I am not especially optimistic that the Supreme Court will revisit the Rodriguez decision. We should accept that the judicial and legislative battleground is now the fifty states. But what concerns me a great deal – and what I hope to convince you of at the conference – is that the orientation of school reform has moved from an equity to an adequacy ideal. Not only have we given up on securing education as a fundamental right, we have also abandoned the very ideal of equal educational opportunity. Instead, the adequacy ideal seeks to compel the state to provide sufficient education to all students. I think this retreat from equity may yield some short-run gains but is a deeply misguided and strategic error in a long-run perspective.

Our most disadvantaged schoolchildren are both absolutely deprived and relatively deprived in educational provision. That is, our worst schools do not meet the standards of an adequate education; they are bad in absolute terms. And of course, our worst schools are also terrible when compared to schools in our wealthy suburbs; they are bad in relative terms.

Will America ever make good on its promise of equality and making educational available to all on equal terms? Probably not. But should we give up on the aspiration to equality? This, in effect, is what Rodriguez wrought. And this, in effect, is what adequacy represents. The retreat from equality as a general matter is what I believe really needs “rethinking”.

Alex Nock

I am excited to come to this conference and engage in a worthwhile discussion over how making an education a right can impact student achievement and overall access to education. I am the Director of the Commission on No Child Left Behind, an independent, bipartisan Commission focused on trying to make NCLB a more useful tool in closing the achievement gap. This Commission has embarked on a year long analysis of the current impact NCLB on teacher quality and the achievement gap. For those looking for information on the Commission, you can visit our website at www.nclbcommission.org. Prior to my current position, I worked in Congress for over 12 years with most of my time spent as one of the top education staffers for the Democratic side of the House Education and the Workforce Committee.

Making education a fundamental/Constitutional right would immediately impact much of the school finance controversies around the country. From a longer range impact, its unclear to me what type of impact it would have. NCLB, and its surrounding discussions, have done much to raise inequity issues at the national level. Clearly education is the means to ensuring access by all in society. Making education a fundamental right would hopefully provide political cover to decision makers looking to enact the right supports and policies. Whether making education a fundamental right impacts in the way we all hope it does probably depends on the specifics of the "right."

Furthering my point, Bill Taylor pointed out an important aspect of NCLB in his entry that has largely not been implemented by the States and the U.S. Department of Education. Even though this requirement exists, it hasn't materialized in results.

The biggest obstacle to making education a fundamental right would be the political reality of our current civil rights situation. Expansion of civil rights law hasn't meaningfully happened since the Americans with Disabilities Act (ADA). Even the rights afforded by the ADA have been systematically eroded by the Courts. Expanding the body of civil rights law to include education is likely even more difficult given the political disagreement in Congress over the direction of NCLB. Looking forward to meeting and seeing everyone at the end of the month.

Eric Tars

Throughout my own education, I had an international perspective derived from my father’s experience as a refugee following WWII, and when I got to law school, I believed I would come out ready to go abroad and bring human rights abuses to light. Luckily, I became the research assistant for Prof. Mari Matsuda, who was both professionally (as a critical race scholar) and personally (as a parent of two children in DC public schools) involved in fighting against the rising threat of privatization of education. She asked me to add my international human rights background to her domestic legal perspective…

…And so began my transition from and international human rights activist to a domestic human rights activist. At Global Rights I further explored what it would mean to make the human right to education real, not abroad, but here at home. Because the NAACP brought one of the first petitions to the UN charging Jim Crow amounted to genocide, the Southern Democrats (soon to be replaced by the Southern Republicans) forced the civil rights community to part with the resources of the UN human rights system through the threat of Communist tarring. This is a great loss, for the human rights framework offers standards, accountability, and forums in excess of what are conceived of in domestic law. The human right to education is based on four fundamental standards, availability, accessibility, acceptability, and adaptability, that U.S. activists could be using to measure how our own government is meeting its obligations to its children. And under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which the U.S. has ratified, the definition of discrimination (including in education) is anything which has the purpose or effect of unequal treatment – but yet the domestic courts continue to apply a discriminatory intent standard leaving the legacy of racism in this country legally unrecognized.

The biggest obstacle a human right to education is the U.S.’s powerfully successful notion of exceptionalism to human rights standards, and increasingly to our own Constitutional standards as well. Just as it does not believe it must follow the Geneva Conventions, this government (our state and local governments included) also believes it need not fully fund No Child Left Behind – demanding accountability from schools and students, but as Bill Taylor notes, failing to provide the public with the ability to hold the government accountable to its obligations. By returning to a human rights-based framework, we put the onus back where it belongs – on the government’s duty to fulfill its obligations to the rights-holders: the people.

Ross Wiener

I come to the conference believing that educational equity is the most urgent civil rights struggle of our time. I started my career as a trial attorney in the Civil Rights Division’s Educational Opportunities Section at the U.S. Department of Justice, where I worked primarily on continuing desegregation cases in the rural South. While I was working at the Department, the limitations of courts to secure social justice became painfully clear – at least under existing laws and precedents. My belief is that public understanding and political will need to progress before courts are going to be able to do much more to ensure fairness in access to educational opportunities, so I have sought to work on the same issues but from a public advocacy and policy perspective.

Making education a fundamental right would be a significant step in perfecting our democracy. The fact is that education represents more of a dividing line than in the past, in terms of access to good jobs, being a responsible citizen (e.g., the ability to evaluate ballot initiatives and candidate’s platforms, and to serve on juries), and full participation in our civil society. While the wide disparities that we have tolerated in education have always been immoral, more than ever before education is the dividing line between enjoying the boundless opportunities that are present in this country or life on the margins.

The biggest obstacle to creating a fundamental right to education is the lack of belief that everyone is capable and worthy of getting an education. The corollary to this is the pervasive – and wrong – belief that public education is doing a fine job right now, and that the real problem is students’ lack of ability or motivation or other external factors that schools are powerless to confront. The public simply does not understand the extent to which opportunities in public education are systematically withheld from students of color and students growing up in poverty. In the main, Americans believe that educational attainment is currently distributed based on merit, and this deep-seated notion is incredibly difficult to challenge.

To instill education as a fundamental right will require Americans to come to terms with the fact that there is much more we should be doing to educate young people right now. The current political situation exacerbates the lack of understanding – leaders who normally stand up for children are often defensive when it comes to critiquing public schools, and leaders who champion school reform are often those who are seen as least likely to look out for the interests of low-income students and students of color. A serious campaign to make education a fundamental right will require leaders who can speak honestly to the American people about the need and the ability to educate all of our young people, and the shortcomings of the systems we have right now.

William Taylor

With respect to education as a fundamental right, even as a congenital optimist, I do not see any likelihood that in the foreseeable future the federal courts would revisit the Rodriguez conclusion that education, while terribly important, was not fundamental. I leave it to others to figure out whether elevating education to fundamental right status is the key to winning more state cases. I do think that the some of the members of the Rodriguez court were troubled by the notion that other kinds of service also had a claim to be fundamental (e.g. police and fire services as necessary to preserve life, etc.) and that going down that road might enmesh the judiciary in supervising the state appropriations process. I also think that Justice White (with his highly developed sense of rationality) was correct in concluding that the Texas system did not meet a rational basis test. (These days of course the activist right on the court will throw out legislation it doesn’t like without having any defensible standard.)

I do have one putatively constructive suggestion. I along with a couple of others, was responsible for drafting and inserting into the No Child Left Behind Act a provision which places on the State the responsibility of ensuring that LEAs and schools have the capacity to carry out their education duties under the Act. For example, States must describe the specific steps they will take “to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out of field teachers…”

I believe there is no more important facet of equity than that suggested above. I also believe that the provision is and will be widely flouted by States and that there is no clear path to remedy because the act does not specify a right of action by private parties. So my hope is that all the great minds assembled a this conference will figure out ways to make this promise of equality (or something very close) a reality.

Russlynn Ali

Before joining the Education Trust West, I worked on broader children's issues as the Liaison to the President at the Children’s Defense Fund, and in education policy with the Broad Foundation and the LAUSD Board of Education. I also practiced civil rights law, and securities fraud litigation. Prior to starting my law career, I was a teacher. Through these experiences it became clear to me that there remains two very separate and very unequal education systems in America. I've also witnessed first hand the root cause of low achievement and achievement gaps -- a system designed to provide less of all that matters most to low income kids and students of color.

Education is already a fundamental right. The problem is that in this country and state, the quality of education varies dramatically, with poor and minority students getting shortchanged. How can we make sure every student has access to a high-quality education and that every student and teacher has the opportunities and support they need to be successful? We have the know how. The real question is whether we have the will.

We have a long tradition of taking children who come to school with less, and then giving them less at school too – from the time they enter kindergarten till the time they graduate, if they make it to graduation. Whether we look at the amount of money actually spent on poor and minority students and schools, the conditions of the school buildings, labs, or textbooks in schools that poor and minority students attend, the qualifications of the teachers teaching poor and minority students, or the rigor of the courses and curriculum offered to poor and minority students – poor and minority students, by and large, get significantly less than their more affluent and white peers. And then we wonder why achievement gaps are so persistent.

In the end, it really is about the expectations we hold for students. Some will go to college, and our neighborhood schools provide them what they'll need to get there. But for others -- mostly Latino, African American and poor -- our expectations aren't very high, we don't think they can learn as much as their more advantaged peers. If we don't expect much, apparently, we don't give much either.

Jamienne Studley

In 35 years of working for social justice, civil rights, and effective government across settings, states, and issues, education excellence and opportunity have been continuous and powerful strands.

As President of Skidmore College my priorities included higher education pipeline programs, advocacy for need based financial aid, and national work to narrow the fault lines in access, quality, and funding.

Earlier as deputy (for regulations and legislation) and then acting general counsel at the US Department of Education (1993-99), I worked on the full range of education issues; relevant topics included opportunity and access policies and programs, affirmative action, eliminating the vestiges of de jure segregation, and budget and tax policy to fund education at all levels.
I was Associate Dean at Yale Law School in the 80s, where I added issues of race and gender to the required first semester ethics program and served on the university Title IX officers task force.

I am a Board member of the Association of American Colleges and Universities (AAC&U), which works to enrich the quality of higher education and reduce the divide that further privileges students who already have the greatest opportunities, and to deepen the extent and educational value of diversity in high education.

This builds on an early, strong foundation in public schools in a small rural community where my grandfather, school board president for 46 years, lived the propositions that quality schools were the vital center of the community and that they needed to provide a good education to everyone.

I was attracted to Public Advocates, Inc. for its mission – to eradicate the systemic causes of poverty and discrimination -- and vision of energizing people who have been foreclosed from political, educational and economic justice to gain the building blocks of thriving communities, with education at the top of that list. For that same 35 years PA has been working on fairness and opportunity in education, pursuing equity in education financing and effective implementation of education programs to increase provision of quality services to all children – in other words, from Serrano to Williams, and now beyond.

My initial reaction is that at the level of core values and collective ethics Americans already understand that education IS a fundamental right. They believe that it’s just plain not fair to ask people to succeed, make their own way, take care of their families, be capable citizens, without having a chance to get an education. I don’t believe we are trying to convince people that there should be a right to education – our task is to convince them that it’s not being delivered to everyone, show them what it would take to deliver it, and demonstrate that government and schools can make the right real on a pragmatic, consistent level. Obstacles? People who cannot or refuse to universalize the right to all children, regardless of background; the perception of schools and public actors as insufficiently competent to be trusted with precious dollars, lives, and decisions; and the degree to which schools are the battleground for wider social debates that complicate or distract from the shared commitment to education (such as status and service eligibility of immigrants; religious and moral debates; views on unions, taxation, and levels of government decision making).

Judith Winston

For four decades, I have been professionally involved in efforts to make quality education accessible to all children regardless of race, color or ethnicity. However, for almost six decades I have recognized the importance of an education in making my life one full of joy and promise. Learning to read at five opened my life to all of life’s possibilities. I accomplished this because of caring adults in my life and in the face of difficult odds. I attended segregated schools in southern New Jersey for the first four of my school years. Nobody told me about racism or negative stereotypes or myths that would make it difficult for my brothers and sisters to prosper in school and as adults. I was just lucky, I guess. Or, maybe I was able to slip through the “cracks” that existed in a system that was then (and is still, for many) hostile, or unprepared, or institutionally unable to see the promise and possibilities in all children. Maybe, my Italian sounding name and my complexion kept some teachers and classmates in Philadelphia from applying those negative myths to me – even though my junior high school homeroom teacher shared with my mother her view that a “Negro” girl had little chance of ever becoming a lawyer (maybe my mother could persuade me to become a teacher instead).

I am a lawyer, have been for almost thirty years. Now, I know about prejudice and institutional racism. I have seen one legal tool after another weakened and discarded in courts, legislatures, and politics – once they seemed to make a difference, potentially or actually. From the promise of Brown and Charlotte-Mecklenburg to the defeats of Milliken and Rodriguez and the mixed blessings of Grutter and Gratz, gaining educational excellence for all has tested this country’s commitment to its founding principles and the substance of our beliefs in equality.

We will try once again to find a tool that may help us in the judicial and legislative field (and in politics as well?) to help the country secure its future – a fundamental right to education under the U.S. Constitution itself. After so many decades, I am finding the will to curb my enthusiasm because I know the difficulties we face. A federally recognized constitutional right to education is only a tool. One that will not be self-executing but one that, if established, will be the result of lengthy litigation and much, much more litigation, lobbying and general contention before we can put substance on the “bones” of a concept that seeks only to ensure that we make the most of the human resources that form the basis of who and what we are as a country. If only we – every one of us -- could imagine a world where every potential was given a chance to flourish through excellent, accessible, teaching and learning. Would the creativity and dollars to make it happen follow?

John Affeldt

I've been working on education law and policy since I started practicing law 15 years ago at Public Advocates fresh out of a federal clerkship. My entry into the field came by way of challenging the discriminatory use of tests in education, most notably the use of IQ tests to place African Americans in special education classes and the CBEST teacher test in California. As a result of a Public Advocates lawsuit and our continuing efforts to defend its injunction, California is the only state to prohibit the use of IQ tests to place African Americans in special education, the court having found such tests discriminatory and their scores to underestimate African American students intelligence. Our ten-year challenge to the CBEST led to requirement that teacher tests be job-related and resulted in substantial modifications to the CBEST (including a quadrupling of the the time allowed) to the benefit of tens of thousands of test-takers each year. Working on testing issues led me to want to challenge as well the underlying lack of equal opportunities to learn that contribute, in part, to test testing disparities. Together with co-counsel from Morrison & Foerster and the ACLU, I was one of the lead counsel on the recently settled Williams v. California lawsuit which successfully challenged California's failure to provide all students with sufficient instructional materials, qualified teachers and decent facilities. In addition to litigation, I have worked closely with community organizers, researchers, and other policy advocates in seeking to build a active statewide, community-based educational justice movement in California. This work has involved me in both providing technical assistance to grassroots community advocates and in policy work in Sacramento and has led to Public Advocates' opening a Sacramento office staffed by an experienced policy advocates, Liz Guillen.

To me, making education a fundamental right would mean that under state and federal constitutions, each person would be recognized as having a right to a minimally decent preschool to grade 12 education. This would mean qualified teachers, enriching curriculum, sufficient instructional materials, decent facilities and extra support as needed for English Learners, special ed students and students who just need a little extra attention and support. Every graduate of such a system should have the opportunity to compete equally for higher education or vocational education opportunities as they choose. An individual's future should be determined by their choices, not by the happenstance of where he or she went to school and by a haphazard distribution of decent educational opportunities.

Thanks (initially, at least) to a case on which Public Advocates also served as a lead counsel, Serrano v. Priest, California is one of the few states where education has been declared a fundamental right and serves as a useful example when thinking about this question on the national level. Having education considered a fundamental right under state law has given ammunition in California for some victories such as the recent Williams settlement and the California Supreme Court ordering the State to intervene to stop the Richmond schools from closing 6 weeks early in the early 1990's. Still, the fundamental right to education here has not led to universal adequate education for all students. Courts may be bold in case language but have been more constrained by political and practical realities in ordering relief. Thus, the original Serrano decision ordering equal funding for schools was limited to revenue limits and through other permissible permutations has allowed rather large and irrational inequities in funding among districts to arise again. Similarly, in the Richmond case (Butt v. California), the Court ordered the State to intervene to keep the schools open but put the burden on the district to pay off a substantial loan which the district continues to be burdened with to this day. Ultimately, among other lessons here, is that we must keep in mind that making education a fundamental right--and keeping it such--will be not just a legal battle, but a political one, requiring sophisticated policy and community advocates, researchers, messaging and a broad, energized community base--in sum, an effective, ongoing political movement.

Aaron Tang

My name is Aaron Tang, I’m the co-director of a new national nonprofit organization called Our Education, which is working to build a national youth movement of high school and college aged students for an American right to high quality public education. As a 22-year-old who just graduated from college last May, I have neither a legal nor policy background. But my hope is to bring to the symposium something amounting to a student voice—what young people themselves have to say about why the fight for a fundamental right to quality education is so critical.

It is our belief that creating a fundamental right to education in this country would affect young people in four important ways. First, it would force us to define, through the legal and legislative processes, what we as a nation actually believe quality education ought to mean for all American youth. Second, it would change the power dynamic that currently operates in our schools, where states and the federal government hold districts, schools, educators, and youth “accountable” for their performance but no one holds the states and federal government accountable for providing the tough policies and resources necessary for high achievement. Third, the creation of a fundamental right to education, especially if it is enshrined explicitly in the US Constitution, would serve as a statement of priority that has been too long missing in our social & civic environment. Finally, if the fundamental right is pursued through a democratic process that involves millions of Americans (particularly the youth who are most directly affected), the most important effect may be that the process itself will produce a generation of youth believes deeply in the importance of educational opportunity, civic responsibility, and civil rights.

The problems facing youth in their schools today are not educational in their nature (which is to say, we do know what good schools look like and how to provide them); they are political. It is a shortage of public demand and political will for change that is responsible for our paradoxical position today: we are among the world’s leaders when it comes to guaranteeing human and civil rights, yet the most important right of all—the right to an education—is not among them. If this is ever to change, public opinion and the power of millions of ordinary American citizens will have to be marshaled in support of a fundamental right to education.

I encourage you to check out Our Education Blog if you are interested in reading more about the student voice and why it must play a critical role in Rethinking Rodriguez.

Look Who's Coming to Rethinking Rodriguez...

• Charles Achilles, Seton Hall Dept. of Education Leadership
• John Affeldt, Public Advocates
• Russlynn Ali, Education Trust West
• Anurima Bhargava, NAACP LDF
• Mark Brilliant, Department of History, UC Berkeley
• Amanda Broun, Public Education Network
• Marilyn Byrne, The Warren Institute, UC Berkeley
• Cynthia Brown, Center for American Progress
• Sara Burns, NYU School of Law
• Lin Chin, Boalt Hall School of Law
• Jim Connell, Institute for Research and Reform in Education
• Jack Coons, Boalt Hall School of Law
• Meghan Corman, Boalt Hall School of Law
• Michael Dannenberg, New America Foundation
• Josh Daniels, Boalt Hall School of Law
• Christopher Edley, Boalt Hall School of Law
• Laura Ewbank, Boalt Hall School of Law
• Mary Louise Frampton, Center for Social Justice, Boalt Hall School of Law
• Ronald Ferguson, Kennedy School of Government
• Carol Frances, Seton Hall University Department of Education
• Bruce Fuller, UC Berkeley School of Education
• Roberta Furger, PICO California
• Patricia Gándara, UC Davis School of Education
• Kathleen Gebhardt, Children's Voices
• Shalini Goel, Boalt Hall School of Law
• James Guthrie, Peabody Center for Education Policy, Vanderbilt University
• W. Norton Grubb, UC Berkeley School of Education
• Richard Hamilton, California School Boards Association
• Greta Hansen, Boalt Hall School of Law
• Ana Henderson, The Warren Institute, UC Berkeley
• Molly Hunter, Campaign for Educational Equity
• Lynn Huntley, Southern Education Foundation
• Jennifer Imazeki, San Diego State University Department of Economics
• Ben Jealous, Rosenberg Foundation
• Kimberley Jenkins, Emory University Law School
• Carl Kaestle, Brown University
• Al Kauffman, The Warren Institute, UC Berkeley
• William Koski, Stanford Law School
• Chinh Le, NAACP Legal Defense Fund
• Catherine Lhamon, ACLU of Southern California
• Martin Lipton, Institute for Democracy, Education & Access, UCLA
• Goodwin Liu, Boalt Hall School of Law
• Jack Londen, Morrison & Foerster
• David Long, attorney in private practice specializing in school finance
• Sam Lucas, UC Berkeley Department of Sociology
• Deborah McKoy, Center for Cities & Schools, Institute of Urban and Regional Development, UC Berkeley
• Rachel Moran, Boalt Hall School of Law
• Seth Morris, Boalt Hall School of Law
• Robert Moses, The Algebra Project
• Elaine Mui, Boalt Hall School of Law
• Adam Nelson, Department of Educational Policy Studies, University of Wisconsin
• Anne Newman, Department of Education, Stanford University
• Alex Nock, The Aspen Institute
• Jeannie Oakes, Institute for Democracy, Education & Access, UCLA
• Ann O’Leary, U.S. Court of Appeals for the Ninth Circuit
• Gary Orfield, Harvard Civil Rights Project
• Geri Palast, Campaign for Educational Equity
• Dennis Parker, ACLU Racial Justice Project
• Eva Paterson, Equal Justice Society
• John Payton, Wilmer Hale
• David Pearson, UC Berkeley Graduate School of Education
• Dan Perlstein, UC Berkeley Graduate School of Education
• Christy Pichel, The Stuart Foundation
• Jeanne Powers, College of Education, Arizona State University
• Henry Ramsey, The Rosenberg Foundation
• Michael Rebell, Campaign for Educational Equity, Columbia’s Teachers College
• Douglas Reed, Department of Government, Georgetown University
• Rob Reich, Department of Political Science, Stanford University
• Andrew Reschovsky, School of Public Affairs, University of Wisconsin-Madison
• Emily Richard, Public Education Network
• John Rogers, Institute for Democracy, Education & Access, UCLA
• Mark Rosenbaum, ACLU of Southern California
• Richard Rothstein, Economic Policy Institute
• Ross Rubenstein, Maxwell School Citizenship and Public Affairs, Syracuse University
• Jorge Ruiz-Velasco, James Irvine Foundation
• James Ryan, University of Virginia Law School
• Debra Satz, Department of Philosophy, Stanford University
• Amy Ellen Schwartz, Department of Public Policy, Education and Economics, NYU
• David Sciarra, Education Law Center
• Stephen Smith, Department of Sociology, UC Berkeley
• Paul Sracic, Department of Political Science, Youngstown State University
• David Stern, UC Berkeley Graduate School of Education
• Jamie Studley, Public Advocates
• Steve Sugarman, Boalt Hall School of Law
• Steve Suitts, Southern Education Foundation
• Marc Tafolla Young, Stanford Law School
• Aaron Tang, Education Now
• Eric Tars, Global Rights
• William Taylor, Citizens’ Commission on Civil Rights
• Blake Thompson, Boalt Hall School of Law
• Paul Tractenberg, Rutgers School of Law
• Michael Wald, Stanford Law School
• Elaine Walker, Seton Hall Department of Education Leadership
• Leecia Welch, National Center for Youth Law
• Kevin Welner, Department of Education, University of Colorado
• Ellen Widess, Rosenberg Foundation
• Ross Wiener, Education Trust
• Judith Winston, Southern Education Foundation
• Elisabeth Woody, Policy Analysis for California Education

If you are listed here and will not be able to attend, or if your name is missing from this list, please send an email to greta@berkeley.edu. Please also contact me if we have listed your name or institutional affiliation incorrectly.

* Symposium Agenda * (with links to papers)

THURSDAY, APRIL 27, 2006

8:30 Coffee and breakfast

9:00 Welcome and introduction to the symposium
Christopher Edley, Jr. and Goodwin Liu

9:30 EMPIRICAL RESEARCH / DATA ANALYSIS

The Legacy of Rodriguez: Three Decades of School Finance Reform in Texas
Andrew Reschovsky and Jennifer Imazeki

The Impact of the 1998 Abbott v. Burke Adequacy Decision on Educational Progress in New Jersey High Poverty Districts: What Have We Learned?
Elaine Walker, Carol Frances, and Charles Achilles

Discussant: Ronald Ferguson

10:40 Break

10:50 Federal Support for Adequacy and Equity in Education Finance
Susanna Loeb and Michael Dannenberg

Rethinking the Intradistrict Distribution of School Inputs to Disadvantaged Students
Ross Rubenstein, Amy Ellen Schwartz, and Leanna Stiefel

Discussant: Mark Rosenbaum

12:00 Lunch

1:00 LAW / DOCTRINE / THE COURTS

Educational Adequacy, Social Science, and the Role of Courts
Michael Rebell

What Is To Be Equalized? Litigation, Equity, and the “Improved” School Finance
W. Norton Grubb

Standards, School Finance Litigation, and Educational Rights
James Ryan

Discussants: Patricia Gándara, James Guthrie

2:45 Break

3:00 LAW / DOCTRINE / THE COURTS—PART II

A Tale of Two States: New Jersey’s and California’s 35-Year School Funding and Educational Reform Litigation
Paul Tractenberg

The State’s Interests and Responsibilities in the Adequacy vs. Equity Debate
Bill Koski and Rob Reich

International Alternatives to a Punitive Enforcement Model to Advance a Fundamental Right to Education in the United States
Kimberly Jenkins

Discussants: Bruce Fuller, Lynn Huntley

4:45 Break

5:00 SUMMARY

6:00 RECEPTION AND DINNER

Keynote remarks: Robert J. Birgeneau, Chancellor, UC Berkeley


FRIDAY, APRIL 28, 2006

8:30 Coffee and breakfast

9:00 POLICY DESIGN / ENFORCEMENT / ACCOUNTABILITY

From No Child Left Behind to No Teacher Left Alone: Pushing Policy to Improve Practice
Jim Connell

Education, Equality, and National Citizenship
Goodwin Liu

Discussants: Russlynn Ali, Alex Nock

10:15 Break

10:30 PUBLIC ENGAGEMENT / GRASSROOTS MOBILIZATION

Grassroots Mobilization and the Right to High-Quality Education
Jeannie Oakes, John Rogers, Gary Blasi, and Martin Lipton

Building Public Responsibility for Public Education
Wendy Puriefoy, Amanda Broun, and Emily Richard

Liberty, Values, and Choice
Jack Coons

Discussants: Bob Moses, Roberta Furger

12:15 SUMMARY AND NEXT STEPS

12:45 Adjourn and lunch